November 4, 2016                                                                                 www.nacone.org   NACO E-Line Archive  

Upcoming Events

Save the Dates For: 

122nd NACO Annual Conference
    
December 14 - 16
     Younes Conference Center
     Kearney, NE
Registration
County Official of the Year Nomination Form

ALL UPCOMING EVENTS

 

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For details contact:
LeRoy.Janssen@nacone.org
WHO SUPPORTS NACO AND THEIR MISSION?

 

AssocMembersAssociate and Sustaining Members

NACO Associate and Sustaining Members enable NACO to enhance its continuing education programs for county officials across the state. Visit NACO's complete associate and sustaining membership list here.

TopIn This Issue
confmattersAnnual Conference Matters
Registration is now open for the annual NACO conference that will be held at the Younes Conference Center in Kearney.  The conference dates are December 14th through 16th. Wednesday, December 14th is the opening session at 2 p.m. and the final day concludes with a Friday, December 16th breakfast, business meeting and awards presentations following through to a sack luncheon dismissal at about noon.

Registration may be accomplished by clicking here .  The general activities agenda can be accessed by clicking   here .  Group agendas can be viewed here.

Conference Keynote Speaker 

Aaron Thomas
Aaron Thomas' father, Ed, was a beloved high school football coach, who not only trained generations of players on the importance of hard work, dedication, excellence, and commitment, but personally put those values into action as the community leader who inspired his town to rebuild in the wake of a deadly EF5 tornado. Not long after the community withstood the disaster of the storm, the small town of Parkersburg, Iowa endured a far worse tragedy...the fatal shooting of Coach Ed Thomas by a former player with mental health issues.

In this incredible story of ordinary people thrust into an extraordinary situation, Aaron Thomas shares his family's journey of showing uncommon strength during the darkest of times. Aaron will discuss how to deal with adversity and how to make the most of all opportunities. You will be challenged to look at your life, your family, and your organization to see if you are being a true difference maker.
 
 
County Official of the Year Nominations Are Being Sought
Do you know of an elected or appointed county official who you feel serves as the embodiment of a true dedicated public official?  If so, nominate that individual for the annual County Official of the Year Award.  The Nebraska Association of County Officials will present its highest honor to one county official at the conclusion of the December 16th business meeting.       

The County Official of the Year Award was created as a means of honoring one individual each year for his or her leadership abilities, high standard of public service and outstanding contributions made to the medium of county government and that person's community.         
The official nomination form can be found on NACO's website or by clicking here.                
To nominate someone you know, print the form, complete it and return it to the NACO office by November 30th, along with any supplemental materials you feel would provide additional insight into why this person is deserving of the award.  Supporting material may include testimonial letters from peers or other printed matter that highlight his or her record of service.  Each of the 2016 nominees will be introduced and recognized during the conference.  The announcement will be made as to who has been chosen by a special selection committee following the NACO Business Meeting on Friday, December 16.  The 2016 recipient will join an elite list of county officials who have previously received this award and will receive a handsomely engraved plaque befitting of this prestigious honor.

Candlewood Suites 
The Candlewood Suites are available for conference booking.  They are located just north of the Younes Conference Center across 4th Avenue in Kearney.  The Candlewood Suites do not have a guaranteed room rate for the conference this year.  The room rate at the Candlewood Suites is $119.95 per night plus taxes.  A preview of that property can be seen here

Changes Or Cancellations To Lodging Reservations
PLEASE NOTE:
Reservations may have been made initially under the county name but must all have individual names of who will occupy each room no later than November 11, 2016. Any reservation being held under the county name after this date will be cancelled.

County officials should take note that the date for changing or cancelling any reservations for the NACO conference is November 11.

Any county making cancellations or changes lodging reservations after the November 11th date will be charged the first night's lodging.

Clerks, Register of Deeds & Election Commissioner's Goodwill Project

The 2016 NACO Conference Goodwill Project has been described by Joyce Oakley, the Nemaha County Clerk.  The project will follow similar guidelines as the 2015 conference donations.   Personal Care items will be asked for from the conference attendees.  Each NACO district will be assigned certain items that will be collected at the conference and will be set for distribution to the state's Veterans' homes.

View the project in its entirety here.      
 
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Board Training for Public Officials

For the past two years Vernon Waldren, who is retired with Nebraska Extension, has presented a condensed board training as part of the NACO Institute of Excellence. Institute of Excellence participants suggested that the topic be covered more in-depth in an Advanced Institute. So it shall be.

Board Training for Public Officials will be presented to graduates of the NACO Institute of Excellence prior to the start of NACO's annual meeting on Tuesday, December 13th in Kearney at the Younes Conference Center. The training will begin at 2:00 p.m. and run until 5:00 p.m. The training will be held in Diamond Ballroom 3.

Cost of the workshop is $45 per person. NACO will bill counties after the workshop according to participation.
 
Mr. Waldren works closely with the Nonprofit Association of the Midlands and enjoys retirement by teaching many courses on Boardsmanship. He will focus this presentation on structure, mission, due diligence, finance and compliance. The information will be tailored for public officials, especially those who serve on nonprofit boards as representatives of county government.

To cover travel and program costs, a minimum of 15 county officials is required to hold the training. To register or get more information email Extension Educators Carroll Welte, or call her at 402.374.2954; or Jessica Jones,  or call her at 402.335.3669.
 
LeginterimLegislature Schedules Interim Study Hearings
Although the 2017 legislative session won't begin until January, senators and staff are working on new legislation during the interim.  Resolutions proposing interim studies are offered during the session to examine new ideas for legislation and to dig deeper into issues raised by previously-introduced bills. Public hearings are held on some of the priority issues selected by each legislative committee, including the topics that are of interest to counties.  County officials are encouraged to attend the hearings and provide testimony. Unlike hearings during the legislative session, testifiers do not need to take a position in support or opposition to the issue, but are simply asked to provide input.  Many of the hearings will be live-streamed by Nebraska Educational Television and can be accessed through the Legislature's website

November 15
Health and Human Services and Judiciary Committees
State Capitol, Room 1113, 1:00 pm.
LR523 (Howard) Interim study to examine Nebraska law regarding the protection of children who have reached eighteen years of age but have not yet reached the age of majority
Invited testimony only
Interim Study Details

November 16
Appropriations Committee
State Capitol, Room1524, 1:30 p.m.
LR517 (Howard) Interim study to examine the long-term fiscal sustainability of the Nebraska Health Care Cash Fund
Interim Study Details

LR588 (Harr) Interim study to determine best practices in drafting tax legislation and determining the fiscal impact of tax policies
Interim Study Details

November 22
Nebraska Retirement Systems Committee
State Capitol, Room 1525, 9:00 a.m.
LR483 (Kolterman) Interim study to examine the public employees retirement systems administered by the Public Employees Retirement Board
LR571 (Nebraska Retirement Systems Committee) Interim study to examine local political subdivision retirement plans for public employees 
Interim Study Details

General Affairs Committee
State Capitol, Room 1510, 10:00
LR541 (Larson) Interim study to examine the economic benefits of keno
Interim Study Details

December 2  Urban Affairs Committee
State Capitol, Room 1510, 1:30 p.m.
LR490 (Crawford) Interim study to examine the enforcement of state and local building codes
December 5
Transportation and Telecommunications Committee and Appropriations Committee
State Capitol, Room 1113, 1:30 p.m.
Nebraska Department of Road Needs Assessment
Open to the public, invited testimony only
 
December 12
Government, Military and Veterans Affairs Committee
State Capitol, Room 1507, 10:00 a.m.
LR597 (Murante) Interim study to examine financing mechanisms available to various political subdivisions to issue bonds or assume future payment obligations without a direct vote of taxpayers
LR596 (Murante) Interim study to examine issues within the jurisdiction of the Government, Military and Veterans Affairs Committee
 
Election Technology Committee
State Capitol, Room 1507, 1:30 p.m.
Study the longevity of the technology used by election commissioners and county clerks to conduct elections as of January 1, 2016, and the feasibility of updating or replacing the technology

NACO makes every effort possible to keep abreast of changing legislation as it may have an effect on county government.  The NACO E-line
will also make every effort to report any interim study hearing notices that become available in future publications. 
 
The Nebraska Legislature has released its Tentative 2017 Legislative Calendar   At the beginning of the 2017 session, the newly elected Speaker will publish the permanent session calendar, which may differ from the tentative calendar.
 
LegallineLegal Line
Editor's Note: Legal Line is a feature that will periodically appear in NACO E-Line. This edition has been prepared by Elaine Menzel of the NACO legal staff. Legal Line is not intended to serve as legal advice. Rather, it is published to alert readers to court decisions and legal or advisory matters important to county government. For a specific opinion on how the information contained in this article or that which will be discussed in future issues relates to your county, consult your county attorney or personal counsel.  
 
EEOC Enforcement Guidance on Retaliation and Related Issues Updated

In late August of this year, the Equal Opportunity Commission (EEOC) issued Final Enforcement Guidance on Retaliation and Related Issues to replace its 1998 Compliance Manual on the topic. Additionally, the guidance addresses the separate "interference" provision under the Americans with Disabilities (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.

The EEOC Enforcement Guidance on Retaliation and Related Issues can be located here.
 
Frequently asked questions and answers can be viewed here.
 
A fact sheet on the summary of retaliation and related issues can be found here.

Discrimination Case Upheld by Supreme Court
 
In Hartley v. Metropolitan Util. Dist., 294 Neb. 870, --- N.W. --- (2016), the Supreme Court heard an appeal from the Metropolitan Utilities District of Omaha (MUD) relating to a district court verdict that found in favor of plaintiff in a gender discrimination action under the Nebraska Fair Employment Practice Act (NFEPA). The plaintiff had sought to prove she was not promoted because of gender discrimination and MUD's stated reasons for promoting a male colleague instead of her were pretextual.  In the appeal, MUD asserted that there was insufficient evidence to support the jury's verdict, the district court erred in excluding post promotional performance evaluations of plaintiff and the attorney fees awarded to plaintiff were excessive.
 
In the case's background section, a great deal of detail is provided about the job description, the background of the applicants and the process related to interviews and decision.
 
Excluded Testimony   (of two potential witnesses)
 
The Supreme Court stated, "A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion. In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party." Here, the Supreme Court found the district court's decision did not unfairly prejudice MUD.
 
Sufficiency of Evidence
 
MUD's assertion was that there was insufficient evidence to support a finding that MUD's stated reasons for hiring Applicant A over plaintiff were pretexts for unlawful discrimination. Under the framework of analysis used by the court, the plaintiff has the burden of proving a prima facie case of discrimination. Such a case consists of demonstrating:
 
  • The employee is a member of a protected group,
  • The employee was qualified and applied promotion to an available position,
  • The employee was rejected, and
  • A similarly situated employee, not part of the protected group, was promoted instead.
 
Note: A plaintiff does not need to prove his or her relative qualifications to meet the burden.
 
Once the plaintiff has established a prima facie case of discrimination, the burden of production shifts to the employer to rebut the case by producing "clear and reasonably specific" admissible evidence that would support a finding that unlawful discrimination was not the cause of the employment action. The Court stated, " If there is any evidence that will sustain a finding for the party against whom a motion for judgment as a matter of law is made, we may not second guess the jury's determination.Viewing the evidence as a whole and in a light most favorable to [plaintiff], we find that there was sufficient evidence to sup­port a reasonable inference that MUD's promotional decision was because of [plaintiff's] gender. Therefore, the court did not err in overruling MUD's motion for a general directed verdict or its related motion for a new trial."
 
Attorney Fees
 
Attorney fees had been awarded by the trial court under Neb. Rev. Stat. §48-1119(4). The amount of awarding attorney fees in actions under NFEPA is addressed to the discretion of the trial court and in the absence of an abuse of discretion the ruling will not be disturbed.
 
The Court reviewed the record, including a detailed itemization of their fees, that both of plaintiff's attorneys submitted to the district court and found the district court did not abuse its discretion. Therefore, the attorney's fees were upheld.
 
For the full text of the opinion click here.

Reorganization Meetings to Occur in January and New Officials to be Sworn In
 (Reprinted and Updated)
 
With elections, arise questions of swearing in dates and related issues. This article is intended to provide an overview of some of those issues.
 
Term of Office and January Organizational Meetings
 
"Unless otherwise provided by the Nebraska Constitution or by law the terms of all elected officers begin on the first Thursday after the first Tuesday in January next succeeding their election."  See Art. XVII, § 5.  That date is January 5 in 2017.
 
In supervisor counties, the regular meetings of the county board are to be held in January and the board at its regular meeting of each year must organize by choosing one of its number as chairman, who shall preside at all meetings of the board during the year; and in case of his absence at any meeting, the members present shall choose one of their number as temporary chairman.  Sections 23-272, 23-274.  Similarly, § 23-156 provides the board of county commissioners at its regular meeting in January of each year must elect a chairman of the board to serve for the ensuing year, and such chairman shall sign all warrants on the treasurer for money to be paid out of the county treasury. If the meeting occurs prior to January 5 the board would be comprised of the "old" board members. If the meeting occurs on January 5 or after, the board would include the newly elected board members.
 
Oath of Office
 
Provisions for the oath of office are addressed in Neb. Rev. Stat. §§ 11-101 et seq. The oath of office in § 11-101 must be subscribed by county officers and filed in the office of the county clerk. The oath includes language related to what an individual swears to do and not do as an officeholder. Section 11-105 contains additional pertinent language and it provides in part: Official bonds, with the oath endorsed thereon, shall be filed in the proper office within the following time: Of all officers elected at any general election,not later than ten days before the first Thursday after the first Tuesday in January next succeeding the election; of all appointed officers, within thirty days after their appointment. In other words, the official bonds with the oaths endorsed thereon must be filed in the county clerk's office not later than December 26, 2016 for individuals elected at the November 2016 general election.
 
The ten day provisions were added by LB 534 (1976) in conjunction with provisions in § 11-115 that address what is to occur if any individual elected or appointed to office fails to have his official bond executed and approved by law. Section 11-115 allows for an individual to properly file an official bond following a show cause for why he has failed to properly file such bond and why his office should not be declared vacant. The ten days provisions were added to statute for the purpose of providing notice to those elected officials required to provide a bond prior to taking office. The legislation was requested to be introduced by the Governor at the time. His basis for doing so was an event that had occurred in a county when a county board member thought he had filed a bond but he had not. The office was deemed vacant due to the failure of filing the bond. The legislation was intended to be corrective.
 
In Lieu of Individual Bonds
 
In addition to the above statutes, there are statutory provisions that provide: "In any county, in lieu of the individual bonds required to be furnished by county officers, a schedule, position, or blanket bond or undertaking may be given by county officers, or a single corporate surety fidelity, schedule, position, or blanket bond or undertaking covering all the officers, including officers required by law to furnish an individual bond or undertaking, may be furnished. The county may pay the premium for the bond. The bond shall be, at a minimum, an aggregate of the amounts fixed by law or by the person or board authorized by law to fix the amounts, and with such terms and conditions as may be required by sections 11-101 to 11-130[.]" See Section 11-119(22). In other words, the swearing in date would not necessarily be required to occur for county officials ten days prior to January 8, 2014 because not all insurance providers require the filing of an oath in conjunction with insurance coverage that is allowed in lieu of an individual bond pursuant to Section11-119(22).    
 
Provisions Added By LB 311 (2013)
 
The filing of the bond with the oath endorsed thereon does not authorize a person to take any official action prior to the beginning of his or her term of office pursuant to Article XVII, Section 5, of the Constitution of Nebraska. Section 11-105(2). Furthermore, in counties which provide a bond for county officers pursuant to subdivision (22) of Section 11-119, such county officers are not required to comply with the timing requirements of subsection (1) of this section with regard to their official bond but shall file their oaths of office in the proper offices prior to the beginning of their terms of office. Section 11-105(3).
 
Lastly, a provision was added to statutes so that Section 11-115 pertaining to officials who neglect to file their bonds does not apply to county officers covered pursuant to Section 11-119(22).  
 
Conclusion
 
So what does all of this mean? If an elected official fails to timely file official bonds with the oath by the appropriate time, the county clerk is required to immediately issue an order to such person to show cause why he has failed to properly file such bond and why his office should not be declared vacant. If such person properly files the official bond before the date for taking office for elected officials, such filing shall be deemed in compliance. Failure to file the bond before the date for taking office for elected officials, and the lack of sufficient cause being shown within that time, result in the individual's office being ipso facto vacant and shall vacancy must be immediately filled by election or appointment.

Conversely, if an elected official utilizes the provisions of § 11-119, the date of January 5, 2017 could be applicable for an officials swearing in. Despite which process is used, newly elected officials take office on January 5, 2017 based on the Nebraska Constitution and the 2017 calendar.
   
Regardless of the option utilized by a county and county officials, it is recommended that this issue be discussed with your county attorney, your bond provider and/or your insurance provider.
 
Should Officials Ending Their Term Be Paid Pro Rata Salaries? Answer: No
 (Reprinted and Updated article)

In a related issue, the question "Are outgoing elected county officials entitled to any pro rata salary for the two days in January that they continue to serve in office?" is addressed below.

This is a question the NACO office has been asked several times in past years and the response has been "No."  The question seems to arise every time a term of office ends, particularly when there is a significant turnover in county board members and county officials. Various new county board members and county officials will take the oath of office in January.  This question arises because Art. XVII, § 5 of the Nebraska Constitution establishes that the terms of all elected officers shall, rather than January 1, begin on the first Thursday after the first Tuesday in January immediately following their election. In 2017, that date will fall on January 5, so the terms of the outgoing county officials will continue through January 5. While it might seem unfair that there is no compensation owed to the outgoing official for this time period, and that the incoming official receives a full month's salary for January though not in office for the entire month, one must refer back to the applicable county salary resolution which governs this period and the underlying law to show why this is the result. It also must be remembered the outgoing official, or the predecessor if appointed to fill a vacancy, likely received a full month's salary for the first January of his or her term though not in office for the full month him or herself.
 
Neb. Rev. Stat. §23-1114 requires every County Board, prior to January 15 of each year in which a general election will be held for the respective county offices, to fix the salaries of all elected officers to be effective for the subsequent term of office. Of course, elected county officials serve four year/48 month terms. Most such salary resolutions adopted by County Boards, utilizing a format recommended by NACO, establish salaries for the various offices on a calendar year basis, which for the current term covers calendar years 2015, 2016, 2017 and 2018. So long as the person(s) in a county office received his or her full salary for calendar years 2015, 2016 and 2017 as called for under the salary resolution, and their December 2016 paycheck represents the balance remaining on the amount that was owed under the same resolution for calendar year 2016, then that official will receive the full salary he or she is entitled to for the 48 months of the term. Payment of anything more than that is not only contrary to the salary resolution but it would also violate Art. III, §19 of the Constitution. This constitutional provision generally prohibits the compensation of any public officer, including elected county officials, from being increased or diminished during his or her term of office. Therefore, any pro rata payment which would result in the payment of a county official in excess of the amount established in the salary resolution is legally impermissible.

Countygovernementdaycd  County Government Day PowerPoint
The PowerPoint presentation is available electronically at no charge (sent via e-mail) for use by counties during their annual County Government Day. The PowerPoint provides a comprehensive look at county government functions in the State of Nebraska and can be customized by each county. CD's are also available for $10.00 each to cover processing, shipping and handling. To request the County Government Day PowerPoint electronically, please e-mail your request to larrydix@nacone.org . The CD order form is available here.

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NACO's Directory of County Officials is a valuable resource that not only gives you names, addresses, phone numbers, fax numbers and e-mail addresses of every county official in the state, but includes a listing of county board meeting days, NACO districts, county seats, NACO officers and directors, affiliate officers and NACO staff.

As of  January 2016, NACO no longer prints the hard copy of the directory and sends one to each county.  The directory has been made a part of the NACO website through a clickable and searchable icon and will be updated as corrections are submitted. The directory on the website is downloadable for a printed copy and it can also be transferred electronically to office computers and devices with memory storage such as smartphones and ipads.

For a copy of the last printed 2015 hard copy directory, click here for the order form.

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County_Board_Handbook_2012  2016 County Board  Handbook and Revision s
The 2016 County Board Handbook and related revisions will be available at the 2016 NACO Annual Conference in Kearney in December.

The cost for a current handbook, including legislative information from the 2016 session, is $80.00/book plus $18.00 shipping and handling per book. The 2016 Supplement to the County Board Handbook is available for $25.00 plus $5.00 shipping and handling. The order form is available on the NACO website or by clicking here.  If you are interested in purchasing a complete handbook and picking it up at Conference on December 15, please notify Deb Eberly at our office by November 30, 2016 so that you can pick up a copy at the conference.  Copies of the 2016 Supplement will be available at the conference on December 15. For questions, contact
Deb Eberly by email or call her at (402) 434-5660 ext.
232. 

NACoNews From NACo
NACo moved into its new offices at 660 North Capitol Street Nov. 1, is co-locating with the National League of Cities

Welcome to NACo's new home!
By Matthew Chase
   Oct. 31, 2016

The boxes are packed; the movers on their way. This week the National Association of Counties begins operations in its new home at 660 North Capitol Street. More than our headquarters, the new space will serve as America's county seat, providing event and work space for county leaders and our allies in the nation's capitol.

On the street level, NACo will also be sharing, and co-branding, a nearly 5,000-square-foot state-of-the-art conference center with the National League of Cities, also a tenant in the building. Together, our two leading local government organizations will occupy three floors of the energy efficient building, certified LEED (Leadership in Energy & Environmental Design) gold by the U.S. Green Building Council. The unique co-location promises to foster collaboration between the organizations in advancing our mutual priorities.

NACo will occupy nearly 40,000 square feet of the 200,000-square-foot building, located at North Capitol and G Streets, N.W., six blocks north of the U.S. Capitol. Republic Properties Corp. is the developer.

The new location adds value to our federal policy advocacy and our efforts to strengthen counties' position on the national stage.

NACo belongs to its members. We hope you will consider this dynamic headquarters your home away from home as we work together to build stronger counties and a stronger America. 

nacowebNACo Webinars
Webinar

Energizing Counties: Strategies and Tools to Improve Your County's Energy Efficiency
Dec. 1, 2016 , 4:00 pm - 5:15 pm CST

Join us on this interactive webinar to learn how counties are innovating to improve the energy efficiency of county assets, and assist residents and businesses with improving their energy efficiency. Energy professionals and county leaders will discuss the strategies and tools they use to achieve success.  This discussion will give county elected officials and staff members an idea of where the field of energy efficiency is heading in the face of changing physical, environmental and economic conditions, and will suggest next steps that counties can take to improve their energy efficiency.

For more information, please contact Jenna Moran at JMoran@naco.org or 202.942.4224.

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Nebraska Association of County Officials
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